A dispute over the flow of the Pigeon River in Clintonville was brought before the City Council on Tuesday, Nov. 12.
Information regarding the dispute shows several parties are involved, including the City of Clintonville, the Wisconsin Department of Natural Resources (DNR), Seagrave Fire Apparatus, and resident Jim Bartz.
Bartz owns Pigeon River waterfront property, and argues that the addition of the new Seagrave facility in 2004 has caused the flow of the river to be diverted. What was once a normal river’s flow was reduced to mud this summer, Bartz said.
“This facility was built in the flood plain, so the city had to get a letter of map revision for the flood plain map, as I understand it. They needed my signature on an agreement because the water that would be draining off of the roof would be diverted through an 18″ pipe and would come out very near my property. I had no problem giving them my signature, because this expansion was supposed to add so many jobs. My only concern was over some trees on Seagrave’s property that had fallen into the river and were obstructing the flow of water.”
That agreement was signed on Sept. 1, 2004. It bears the signatures of Jim Bartz and City Administrator Lisa (Kotter) Kuss.
“Those trees were falling into a small ‘cut’ in the river,” continued Bartz. “Since signing that agreement, Seagrave and the City haven’t removed the trees.”
Bartz says some tree tops were cut off, but he argues that only made the problem worse.
“The tree tops and other ‘flash’ that was cut went into the river and just built up and compounded the problem. Now, the river flows through that small ‘cut’ in the river, rather than following the original path along my property,” said Bartz. “Through the years, it has gotten worse and worse. This summer, the flow along my property dried up.”
Bartz claims he has tried to work with Seagrave, the City, and the DNR to solve the problem, but has not received much help from any of those entities. A message left for Seagrave CEO A. Joseph Neiner seeking comment on this issue was not returned prior to the deadline for this issue of the County Post East.
A letter was sent to Bartz from City Attorney Tim Schmid on Oct. 15 of this year.
“It is my understanding from talking with the City Administrator (Lisa Kuss) that the city does not have the right nor permission to go onto the Seagrave property and remove trees from the water,” said Schmid in the letter. “The DNR has also been contacted and apparently the DNR does not intend to get involved with this issue or assist in the tree removal.
“The letter that was sent to you in 2004 dealt with the issue that then existed. The City dealt with the issue in 2004 and believes that the facts now are different than they were in 2004,” continued Schmid’s letter. “Furthermore, the City does not have the right to go onto the Seagrave property nor force the removal of these trees. The City does not intend to address this issue further.”
Communication between Bartz and DNR Water Management Specialist Scott Koehnke show that the DNR has no problems with the trees obstructing the flow of the river.
“If a tree falls in the river, there is no obligation by the landowner to remove the tree,” said Koehnke in an email to Bartz on Oct. 22. “Trees in the water are a good thing from a resources standpoint. If the tree creates a material obstruction to navigation, then anyone who obtains legal access to the tree either by permission from the landowner or by navigating the water body can remove whatever is necessary to restore navigation. Further, s. 88.90(1-3), Stats., confers specific legal rights to persons damaged by the natural obstruction of natural watercourses. I would recommend that you work cooperatively with the City and (Seagrave) so that an amicable solution that meets everyone’s goals can be found.”
Another email from Koehnke to Bartz contained more information about the river’s flow since 1994.
“I believe what is happening in this instance is a natural process where the river moves with in its flood plain creating oxbows and slack water during low water or normal base flow,” wrote Koehnke. “I can see the new channel that has been created over the past 20 years (by looking at aerial photos dating back to 1994) and it has been getting larger as more of the Pigeon River flows through it. If there is a tree that is affecting some flow in the main channel, that could certainly speed up the process, but the process is natural and normal. This is nothing that the (DNR) would be involved with from a regulatory standpoint and has little control over.”
Bartz personally delivered a written request to “remove all obstructions from the natural water course of the Pigeon River” to Seagrave, and cited the statute referenced by Koehnke, but says the request was refused.
“When they needed my signature for the expansion, they got it,” said Bartz. “Then, they never followed through on their agreement to remove the trees that are obstructing the flow of water. Now, my biggest fear has come true. None of the parties involved seem willing to do anything unless they are forced to by legal action, but I’m not in a position to pursue legal action. I have the equipment to be able to go in and remove the trees, but they won’t let me do it.”
The City Council reviewed an official request from Bartz to have the city order Seagrave to remove the trees, but that request was denied by a 9-0 vote at their meeting on Tuesday, Dec. 10. This vote was cast after considering Schmid’s recommendation to deny the request from Bartz.
“I do not believe that there is anything that the city can do since the tree that Mr. Bartz is complaining of is located on Four Wheel Drive Property,” wrote Schmid in a letter to the council on Dec. 2. “I have reviewed section 88.90 of Wisconsin State Statutes and I believe that if Mr. Bartz believes that his land is being damaged by the obstruction which is caused through natural causes, that he has the right pursuant to Section 88.90(3), Wis. Stats, to remove the obstruction. Note that there are certain risks that would pertain to Mr. Bartz removing the obstruction, but that is not a concern of the city’s.”
Schmid also noted that Section 88.90(2), Wis. Stats, applies only to a village or town board entering an order for the obstruction to be removed after notice requesting removal is served on the property owner. “Therefore, I do not believe the city has the right to order the Four Wheel Drive to take any action for the removal of the tree or obstruction as the statute does not apply to cities.
“It is my opinion that the city should take no further action in this matter as the tree is not located on city property, the city does not have authority to order anyone to remove the obstruction under Section 88.90, Wis. Stats and Mr. Bartz can act himself under Section 88.90, Wis. Stats.”